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United States v. Arizmendiz-Contreras

United States District Court, D. Nebraska

July 14, 2016



          Joseph F. Bataillon Senior United States District Judge.

         This matter is before the court on the defendant’s motion to vacate under 28 U.S.C. § 2255, Filing No. 53. Under the Rules Governing Section 2255 Proceedings for the United States District Courts (“2255 Rules”), the court must perform an initial review of the defendant’s § 2255 motion. See 28 U.S.C. § 2255, Rule 4(b). The rules provide that unless “it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, ” the court must order the United States Attorney to respond to the motion. Id.

         I. FACTS

         On April 9, 2014, defendant was arrested for immigration violations during a search warrant at his residence. Filing No. 1 at 3 (Complaint.) Fraudulent identity documents were seized, along with a 9mm firearm. Filing No. 27 at 2 (Plea Agreement). Defendant’s fingerprints were taken and compared with federal databases, revealing that he had been deported on prior occasions. Id. Defendant had a prior conviction for delivery of a controlled substance in 1998. Filing No. 1 at 3 (Complaint). After this conviction, he was incarcerated and subsequently deported in 1999. Id. Defendant also had a prior conviction for illegal entry and served fifteen months before a second deportation in December 2006. Id. There is no record of any permission sought or granted to allow defendant to return to the United States. Filing No. 27 at 2 (Plea Agreement).[1]

         Following his most recent arrest, a grand jury charged defendant with three different counts. Filing No. 13 (Indictment). Count I charged illegal alien found in the United States following deportation in violation of Title 8, United States Code, Section 1326(a). Id. Count II charged felon in possession of a firearm in violation of Title 18, United States Code, Section 922(g)(1). Id. at 2. Count III charged illegal alien in possession of a firearm in violation of Title 18, United States Code, Section 922(g)(5). Id. On June 26, 2014, defendant signed a plea agreement with the United States in which the parties agreed that Count II and Count III would be dismissed in exchange for defendant’s plea of guilty as to Count I. Filing No. 27 (Plea Agreement). On November 13, 2014, following the acceptance of the plea agreement and defendant’s guilty plea, the District Court sentenced him to fifty-seven months in prison followed by three years of supervised release. Filing No. 39 at 2 (Transcript of Sentencing Proceedings); Filing No. 30 at 2 (Judgment).

         On November 25, 2014, defendant filed an appeal of his sentence with the United States Court of Appeals for the Eighth Circuit. Filing No. 34 (Notice of Appeal). The Court of Appeals dismissed defendant’s appeal on May 6, 2015. Filing No. 47 (Eighth Circuit Court of Appeals Opinion). On October 7, 2015 defendant filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Filing No. 53 (Motion to Vacate). After performing an initial review of the motion under 28 U.S.C. § 2255, Rule 4(b), the District Court found that it did not plainly appear that defendant was entitled to no relief and required the government to answer. The government requested that the District Court deny defendant’s § 2255 motion without an evidentiary hearing. Filing No. 59 at 6 (Answer to Defendant’s Motion).

         In his § 2255 motion defendant alleges numerous grounds as to ineffective assistance by his counsel, Julie Hansen (“Hansen”), including: (1) counsel’s failure to file a motion to suppress the search of his home based on alleged Fifth Amendment violation; (2) counsel’s failure to review his Presentence Investigation Report until after rescheduling a sentencing hearing; (3) counsel’s failure to file a motion for downward departure based on family and cultural assimilation under U.S.S.G. § 2L1.2; and (4) counsel’s failure to meet with him prior to filing his appeal with the United States Court of Appeals for the Eighth Circuit. Filing No. 53 at 5-7 (Motion to Vacate).

         II. LAW

         Under 28 U.S.C. § 2255, a federal prisoner is entitled to “relief if his ‘sentence was imposed in violation of the Constitution or laws of the United States, or . . . was in excess of the maximum authorized by law.’” King v. United States, 595 F.3d 844, 852 (8th Cir. 2010) (quoting 28 U.S.C.A. § 2255(a)). A movant may raise ineffective assistance of counsel issues in collateral proceedings. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003). “The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process.” Kimmelman v. Morrison, 477 U.S. 365, 374 (1986).Under the Fifth and Sixth Amendments, the right to assistance of counsel extends to both trial and to a defendant’s first appeal of right. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963)(stating the right to counsel is fundamental at the trial level); Evitts v. Lucey, 469 U.S. 387, 392-93 (1985) (discussing the fundamental right to effective assistance of counsel on a criminal defendant’s first appeal as of right).

         “‘The right to counsel includes the right to reasonably effective counsel.’” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)). In order to make out a claim of ineffective assistance, a petitioner must satisfy the familiar two-part Strickland standard, which requires a showing “that his lawyer’s performance fell below the minimum standards of professional competence (deficient performance) and that there is a reasonable probability that the result of the proceedings would have been different if his lawyer had performed competently (prejudice).” Alaniz v. United States, 351 F.3d 365, 367-68 (8th Cir. 2003)).

         Deficient performance “is that which falls below the ‘range of competence demanded of attorneys in criminal cases.’” Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010) (quoting Strickland, 466 U.S. at 687). “The standard is an objective one, viewed in light of professional norms prevailing when the representation took place.” Id. at 906 (citing Bobby v. Van Hook, 558 U.S. 4, 6, 130 S.Ct. 13, 16 (2009) (per curiam)). The court must consider “whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688. The reasonableness of counsel’s challenged conduct depends upon the facts of the particular case, viewed as of the time of counsel’s conduct. King, 595 F.3d at 852. To establish prejudice under Strickland, a petitioner must “demonstrate that there is a reasonable probability that, but for counsel’s claimed unprofessional errors, the result of the proceeding would have been different.” Christenson v. Ault, 598 F.3d 990, 996 (8th Cir. 2010).

         A defendant “faces a heavy burden” to establish ineffective assistance of counsel. DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000). However, an attorney's failure to file a notice of appeal after being instructed to do so by his client constitutes ineffective assistance entitling petitioner to section 2255 relief, no inquiry into prejudice or likely success on appeal being necessary. Barger v. United States, 204 F.3d 1180, 1182 (8th Cir. 2000); Witthar v. United States, 793 F.3d 920, 922-23 (8th Cir. 2015) (stating that prejudice is presumed).

         The Supreme Court has rejected "a bright-line rule that counsel must always consult with the defendant regarding an appeal." Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000) ("We cannot say, as a constitutional matter, that in every case counsel's failure to consult with the defendant about an appeal is necessarily unreasonable, and therefore deficient.").[2] Where there is no express direction from a defendant to appeal, "counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id. at 480. In making the determination as to whether counsel had been effective in counseling the defendant about appeal, "courts must take into account all the information counsel knew or should have known." Id. (noting that "a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings."). Id.

         III. ...

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